Citation Nr: 0617602
Decision Date: 06/16/06 Archive Date: 06/27/06
DOCKET NO. 04-08 671 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office
in St. Paul, Minnesota
THE ISSUE
Whether new and material evidence has been received to reopen
a claim of entitlement to service connection for bilateral
hearing loss and, if so, whether the reopened claim should be
granted.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. A. Rein, Associate Counsel
INTRODUCTION
The veteran had active military service from May 1967 to May
1969.
The present matter comes before the Board of Veterans'
Appeals (Board) on appeal of a February 2003 rating decision
of the Department of Veterans Affairs (VA) Regional Office
(RO) in St. Paul, Minnesota.
In May 2004, the veteran testified at a hearing at the RO
before the undersigned; a copy of the transcript is of
record.
In a July 1988 rating decision, the RO denied the veteran's
claim for service connection for bilateral hearing loss. The
veteran was notified of the RO's determination but did not
appeal and the decision became final.
The Board notes that in the February 2003 rating decision, it
appears that the RO reopened the veteran's claim for service
connection for bilateral hearing loss and then denied the
claim on the merits, although, in the February 2004 statement
of the case (SOC), it seems that it denied the claim to
reopen. However, before the Board may reopen a previously
denied claim, it must conduct an independent review of the
evidence to determine whether new and material evidence has
been submitted sufficient to reopen a prior final decision.
See Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d
1380 (Fed.Cir. 1996). Furthermore, if the Board finds that
new and material evidence has not been submitted, it is
unlawful for the Board to reopen the claim. See McGinnis v.
Brown, 4 Vet. App. 239, 244 (1993). Consequently, the first
issue that must be addressed by the Board is whether the
previously denied claim ought to be reopened. 38 U.S.C.A. §
5108 (West 2002). See Jackson v. Principi, 265 F.3d 1366
(Fed. Cir. 2001).
The issue of entitlement to service connection for bilateral
hearing loss is addressed in the REMAND portion of the
decision following the order; this matter is being REMANDED
to the RO via the Appeals Management Center (AMC), in
Washington, D.C. VA will notify the veteran when further
action, on his part, is required.
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate the veteran's petition to reopen the claim for
service connection for bilateral hearing loss has been
accomplished.
2. In a July 1988 rating decision, the RO denied the
veteran's claim for service connection for bilateral hearing
loss; although the RO notified him in writing of the denial
that same month, the veteran did not appeal the
determination.
3. Additional evidence associated with the claims file since
the RO's July 1988 denial was not previously before agency
decision makers, is not cumulative or duplicative of evidence
previously considered, relates to an unestablished fact
necessary to substantiate the claim for service connection
for bilateral hearing loss, and raises a reasonable
possibility of substantiating the claim.
CONCLUSION OF LAW
Evidence received since the July 1988 rating decision that
denied the veteran's claim for service connection for
bilateral hearing loss is new and material and the claim for
service connection for bilateral hearing loss must be
reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 38
C.F.R. § 3.156(a) (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Public Law
No. 106-475, 114 Stat. 2096 (2000), substantially amended the
provisions of Chapter 51 of Title 38 of the United States
Code and, among other things, eliminated the requirement of a
well-grounded claim and enhanced the notice and assistance to
be afforded to claimants in substantiating their claims.
VCAA § 3(a), 114 Stat. 2096, 2096-97 (now codified as amended
at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2005)). In
addition, VA has published regulations to implement many of
the provisions of the VCAA. See 66 Fed. Reg. 45,620 (Aug.
29, 2001) (now codified as amended at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, and 3.326(a) (2005).
In November 2002, the RO provided the appellant with
correspondence essentially outlining the duty-to-assist
requirements of the VCAA. In addition, the appellant was
advised, by virtue of a detailed February 2004 SOC of the
pertinent law, and what the evidence must show in order to
substantiate his claim. See Charles v. Principi, 16 Vet.
App. 370, 373-74 (2002) (Board must identify documents which
meet notice requirements of VCAA). See also Kent v.
Nicholson, No 04-181 (U.S. Vet. App. March 31, 2006) (VA must
notify a claimant of the evidence and information that is
necessary to reopen the claim and VA must notify the claimant
of the evidence and information that is necessary to
establish his entitlement to the underlying claim for the
benefit sought by the claimant. VA must notify the claimant
of what evidence would be necessary to substantiate that
element or elements required to establish service connection
that were found insufficient in the previous denial.).
In view of the Board's favorable disposition as to the
veteran's request to reopen his claim, it appears in this
case that all obtainable evidence identified by the appellant
relative to his claim has been obtained and associated with
the claims folder, other than that which the Board will be
seeking through the development mentioned in the Remand
portion of this decision, below. The record on appeal is
sufficient to resolve the matter as to whether the claim
should be reopened.
II. New and Material Evidence
The veteran's claim for service connection for bilateral
hearing loss was previously considered and denied in a July
1988 rating decision. The RO denied the veteran's claim on
the basis that the evidence failed to show that he had
bilateral hearing loss in service and there was no reasonable
basis for relating any current hearing loss to his period of
military service. The veteran did not appeal that decision
and it became final based on the evidence then of record.
See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302,
20.1103 (2005). The veteran next sought to reopen his claim
for service connection for bilateral hearing loss in August
2002.
Under pertinent legal authority, VA may reopen and review a
claim that has been previously denied if new and material
evidence is submitted by or on behalf of the veteran. 38
U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v.
West, 155 F.3rd 1356 (Fed. Cir. 1998).
For claims filed on or after August 29, 2001, VA law provides
that a claimant may reopen a finally adjudicated claim by
submitting new and material evidence. New evidence is
existing evidence not previously submitted to agency decision
makers and material evidence is existing evidence that, by
itself or when considered with previous evidence of record,
relates to an unestablished fact necessary to substantiate
the claim. New and material evidence can be neither
cumulative nor redundant of the evidence of record at the
time of the last prior final denial of the claim sought to be
reopened, and must raise a reasonable possibility of
substantiating the claim. 38 U.S.C.A. § 5108 (West 2002); 38
C.F.R. § 3.156(a) (2005).
Nevertheless, to whatever extent the new legislation has
changed the approach to developing evidence in claims, it has
not modified the longstanding requirement that a previously
denied claim may not be reopened and readjudicated unless,
and until, there has been a finding that new and material
evidence has been submitted.
The Court has held that the credibility of evidence must be
presumed for the purpose of deciding whether it is new and
material. Justus v. Principi, 3 Vet. App. 510, 513 (1992).
In the July 1988 decision, pertinent evidence of record
included the veteran's service medical records.
The evidence added to the record since the final, unappealed
July 1988 rating action that denied service connection for
bilateral hearing loss includes VA outpatient records, dated
from August 1999 to October 2002, that primarily reflect
treatment for unrelated medical conditions, the veteran's
written statements in support of his claim, the results of a
January 2003 VA audiogram report reflecting current bilateral
hearing loss disability with an audiologist's opinions, and
the transcript of the veteran's May 2004 Board hearing. The
Board notes that, although the January 2003 VA audiologist
opined that it was at least as likely as not that the
veteran's current bilateral hearing loss was not related to
active duty noise exposure, she acknowledged that he was
exposed to loud noise during service. The audiologist also
opined that it was at least as likely as not that the
veteran's tinnitus was related to military noise exposure.
The Board finds that the January 2003 VA audiogram results
together with the audiologist's opinions-that the Board views
as at least acknowledging the possibility of a nexus between
the veteran's in-service noise exposure and current bilateral
hearing loss-constitutes new and material evidence to reopen
the claim for bilateral hearing loss. This evidence is new
in that it was not previously before agency decision makers
at the time of the July 1988 decision, and is not cumulative
or duplicative of evidence previously considered. In this
regard, at that time the veteran was not shown to have
bilateral hearing loss, nor was there any evidence of a
possible relationship between the veteran's service,
including exposure to acoustic trauma, and the currently
diagnosed bilateral hearing loss.
As such, this evidence, by itself or when considered with
previous evidence of record, relates to an unestablished fact
necessary to substantiate the claim, i.e., current bilateral
hearing loss. It is neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim and raises a reasonable possibility of
substantiating the appellant's claim. As the evidence added
to the record is "new and material," the claim must be
reopened.
However, the adjudication of the appellant's claim does not
end with a finding that new and material evidence has been
submitted, nor is a grant of service connection for bilateral
hearing loss assured. Once a claim is reopened, the VCAA
provides that the Secretary shall make reasonable efforts to
assist a claimant in obtaining evidence necessary to
substantiate the claimant's claim for benefits, unless no
reasonable possibility exists that such assistance would aid
in substantiating the claim. See 38 U.S.C.A. § 5103A (West
2002 & Supp. 2005). Here, as noted below in the Remand, the
Board is requesting additional development with respect to
the underlying claim of service connection for bilateral
hearing loss and will issue a final decision once that
development is complete, if the case is ultimately returned
to the Board.
ORDER
New and material evidence having been submitted, the claim
for entitlement to service connection for bilateral hearing
loss is reopened, and the appeal is, to that extent, granted.
REMAND
The veteran seeks service connection for bilateral hearing
loss.
During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in the consolidated appeal of Dingess
and Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held
that the VCAA notice requirements of 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2005) and 38 C.F.R. § 3.159(b) (2005)
apply to all five elements of a service connection claim.
The Court indicated that in cases, as here, involving a claim
for service connection, proper VCAA notice includes advising
the veteran that a disability rating and effective date will
be assigned in the event service connection is granted. The
VCAA notice also must include an explanation of the type of
evidence that is needed to establish a disability rating and
effective date. The veteran has not received this required
notice.
The Board also finds that additional RO development on the
claim is warranted.
The veteran contends that his bilateral hearing loss is due
to his exposure to acoustic trauma from his work as a turbine
engine mechanic on helicopters while serving in Vietnam.
During his May 2004 Board hearing, the veteran testified that
his duties required that he crawl up into engine compartments
and adjust the engines. He stated that he was not given
protective gear and he was constantly exposed to the high
pitch whine of the turbine engine. The veteran's DD Form-214
lists his military occupational specialty as a helicopter
mechanic.
For VA purposes, impaired hearing is considered to be a
disability when the auditory threshold in any of the
frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is
40 decibels or greater; the thresholds for at least three of
these frequencies are 26 or greater; or when speech
recognition scores using the Maryland CNC Test are less than
94 percent. 38 C.F.R. § 3.385 (2005).
Initially, the Board notes, as the RO did, that the veteran's
service medical records reflect no specific complaints,
findings, or diagnosis of bilateral hearing loss.
However, the absence of in-service evidence of hearing loss
is not fatal to the claim. See Ledford v. Derwinski, 3 Vet.
App. 87, 89 (1992). Evidence of a current hearing loss
disability (i.e., one meeting the requirements of section
3.385, as noted above) and a medically sound basis for
attributing such disability to service may serve as a basis
for a grant of service connection for hearing loss. See
Hensley v. Brown, 5 Vet. App. 155, 159 (1993), 38 U.S.C.A. §
1154 (West 2002).
Upon further review, the Board points out that, although
there is no specific statement indicating that the veteran
had bilateral hearing loss in service, there are audiometric
findings in the veteran's May 1967 induction examination,
September 1967 flight physical, and April 1968 flight
physical, suggesting that the veteran sustained decreased
hearing during service. However, audiometric testing at
separation examination in February 1969 indicates that the
veteran's bilateral hearing was normal. As pointed out by
the veteran and his representative, the audiometric findings
in service appear significantly inconsistent; hence, they
need to be addressed by a qualified medical professional.
The Board notes that the only medical opinion currently of
record to address whether any currently diagnosed bilateral
hearing loss is related to military service is the January
2003 statement of a VA audiologist, that it was not likely
that the veteran's current bilateral hearing loss was related
to military noise exposure, based on the service discharge
audiometrics of February 1969 that demonstrated essentially
normal hearing bilaterally (and that appear inconsistent with
Hensley and Ledford, cited above). The audiologist also
opined that it was at least as likely as not that the
veteran's tinnitus was related to military noise exposure,
even though the veteran was not diagnosed with tinnitus at
service discharge. Thus, it appears that the VA audiologist
accepted the veteran's contentions that he was exposed to
acoustic trauma in service. Aside from these apparently
conflicting opinions by the January 2003 VA audiologist, the
Board points out that there is no medical opinion that
addresses the etiology of the veteran's bilateral hearing
loss.
In this case, the Board finds that the veteran's claims of
in-service exposure to acoustic trauma are consistent with
the circumstances of his service as a helicopter mechanic.
Moreover, in view of Hensley and Ledford (cited above), the
audiometric inconsistencies in the service medical records,
and the January 2003 audiologist's opinions, the Board finds
that a VA medical examination is warranted to determine the
etiology of any currently diagnosed bilateral hearing loss.
See 38 U.S.C.A. § 5103A (West 2002).
Prior to arranging for the veteran to undergo further
examination, the RO should obtain outstanding VA medical
records. In this regard, in a December 2002 Statement in
Support of Claim (VA Form 21-4138), the veteran stated that
he had his hearing checked at the VA years ago during an
Agent Orange examination; however, there is no Agent Orange
examination or audiology report associated with the claims
file. It would be helpful to know when the examination was
performed and to obtain a copy of the report. In addition,
during the May 2004 Board hearing, reference was made to the
veteran being seen at the St. Paul VA Medical Center (VAMC)
from 1969 to 1985. A review of the claims file reflects a
few nonrelated VA medical records from the St. Paul VAMC
dated in July 1969.
Also, during the hearing, the veteran stated that he received
his medical treatment at the Minneapolis VAMC since about
1960. The claims file includes VA treatment records from the
Minneapolis VAMC, dated from August 1999 to October 2002 for
nonrelated medical conditions. The Board emphasizes that
records generated by VA facilities that may have an impact on
the adjudication of a claim are considered constructively in
the possession of VA adjudicators during the consideration of
a claim, regardless of whether those records are physically
on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998);
Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).
Accordingly, this matter is hereby REMANDED to the RO, via
the AMC, for the following action:
1. The RO should contact the veteran and
request that he provide an approximate
date and location for his VA Agent Orange
examination.
2. Then, the RO should request the
veteran's Agent Orange examination, and
all audiology reports and other medical
records regarding evaluation or treatment
of the veteran's bilateral hearing loss
from the St. Paul VAMC for the period
from June 1969 to January 1985, and from
the Minneapolis VAMC for the periods from
June 1960 to September 1999 and from
November 2002 to the present.
3. The RO should send the veteran a
corrective VCAA notice under 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b), which
includes an explanation of the
information or evidence needed to
establish a disability rating and
effective date for the claim for service
connection for bilateral hearing loss as
outlined by the Court in Dingess and
Hartman v. Nicholson, 19 Vet. App. 473
(2006).
3. Then, the veteran should be afforded
special VA ear and audiological
examinations in order to determine the
etiology of any bilateral hearing loss
found to be present. All indicated
special studies should be conducted and
all clinical findings reported in detail.
A complete history of noise exposure
should be obtained from the veteran.
a) The examiner(s) is(are)
requested to provide an opinion
concerning the etiology of any
currently diagnosed bilateral
hearing loss found to be present, to
include whether it is at least as
likely as not (i.e., at least a 50-
50- probability) that any currently
diagnosed bilateral hearing loss was
caused by military service
(including exposure to acoustic
trauma and the findings noted in the
May and September 1967, April 1968,
and February 1969 service medical
records), or whether such an
etiology or relationship is less
than likely (i.e., less than a 50-50
probability).
b) In rendering an opinion, the
examiner(s) is(are) particularly
requested to address the opinions
expressed by the VA audiologist in
January 2003 (to the effect that the
veteran's currently diagnosed
hearing loss was not likely related
to military noise exposure, and it
was at least as likely as not that
his tinnitus was related to military
noise exposure).
c) A rationale should be provided
for all opinions offered. The
claims file should be made available
to the examiner(s) prior to the
examination(s) and the examination
report(s) should indicate if the
examiner(s) reviewed the veteran's
medical records.
NOTE: The term "at least as
likely as not" does not mean
merely within the realm of
medical possibility, but rather
that the weight of medical
evidence both for and against a
conclusion is so evenly divided
that it is as medically sound
to find in favor of causation
as it is to find against it
4. Then, the RO should readjudicate the
claim for service connection for
bilateral hearing loss in light of all
pertinent evidence and legal
authority. If the benefits sought on
appeal remains denied, the RO should
furnish to the veteran and his
representative a supplemental
statement of the case (SSOC). The
SSOC should contain notice of all
relevant actions taken on the claim,
to include a summary of the evidence
and applicable law and regulations
considered pertinent to the issue
currently on appeal since the February
2004 SOC. An appropriate period of
time should be allowed for response.
Thereafter, the case should be returned to the
Board for further appellate consideration, if
appropriate. The veteran need take no action until
he is notified. The Board intimates no opinion,
either factual or legal, as to the ultimate
conclusion warranted in this case.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
D.J. DRUCKER
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs